ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002528

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 14/09/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The complainant was paid for holidays in December 2015. The complainant also used stock items for a personal beauty course. The complainant was the first employee of the respondent and therefore some documentation may not have issued.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Did the complainant receive a written statement of her terms of employment?

Did the complainant receive all payments due as wages?

Did the complainant receive all payments due for annual leave?

Did the complainant receive all payments due for Public Holidays?

Legislation involved and requirements of legislation:

Section 3(1) of the Terms of Employment (Information) Act , 1994, states:

An employer shall, not later than 2 months after the commencement of an employee’s employment with an employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of employee’s employment…

Section 5(1) of the Payment of Wages Act, 1991, states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

1. the deduction (or payment) is required or authorised to be made by virtue of an statute or any instrument made under statute,

2. the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contractbefore, and in force at the time of, the deduction or payment, or

3. in the case of a deduction, the employee has given his prior consent in writing to it.

Section 19(1) of the Organisation of Working Time Act, 1997, states:

An employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to-

1. 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

2. one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

3. 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Section 21(1) of the Organisation of Working Time Act, 1997, states:

Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely-

1. a paid day off on that day,

2. a paid day off within a month of that day,

3. an additional day of annual leave,

4. an additional day’s pay:

Decision:

The complainant was employed as a Beauty Consultant in the respondent’s Salon. Employment commenced on 1 May 2015 and terminated on 28 January 2016. The complainant was paid €10.00 per hour and worked 24 hours per week.

The respondent accepted that the complainant had not been issued with a copy of her terms of employment explaining that this was the first time that she had officially employed anyone and that she had not been familiar with all the requirements in this regard.

The respondent stated that the complainant had taken items of stock from the salon for private use. The complainant said she had taken some items in order to do demonstrations but denied that she provided beauty treatments at home. The respondent had offset the final payment against these items.

As regards annual leave the pay slips provided by the respondent showed that the complainant had been paid €240.00 in August in respect of a week’s leave and that a further payment of €350.52 in respect of holidays had been paid in December.

Finally the respondent accepted that the complainant was due payment for Public Holidays.

Having considered all matters I make the following decisions:

Complaint No. CA-00003531-001:

I find this complaint under the Terms of Employment (Information) Act, 1994, to be well founded and order the respondent to pay the complainant compensation of €850.00 in this regard.

Complaint No. CA-00003531-002:

There was conflicting evidence regarding the use by the complainant of items of stock from the salon. Having established that the complainant was not issued with a statement of employment it follows that the respondent was not entitled to withhold payment of wages as there was no term of the contract of employment authorising this deduction. I therefore find that this complaint under the Payment of Wages Act, 1991, is well founded and I order the respondent to pay the complainant compensation to the amount of €230.46.

Complaint No. CA-00003531-003:

This complaint under the Organisation of Working Time Act, 1997, is in respect to a complaint about the non-payment of annual leave entitlement. On the basis of the evidence before me the complainant was due to be paid 74.88 hours annual leave. She received 59.52 hours and is therefore due 15.36 hours. I therefore find this complaint to be well founded and order the respondent to pay the complainant compensation to the value of €153.60 in this regard.

Complaint No. CA-00003531-004:

This complaint is in relation to the non-payment of Public Holiday entitlement and is admitted by the respondent. I therefore find that this complaint under the Organisation of Working Time Act, 1997, is well founded and order the respondent to pay the complainant compensation of €288.00 in respect of 6 Public Holidays (4.8 hours x 6).

Dated:   25^th November 2016